Parliamentary Rules Concerning Private Members' Bills.
A recent trend in Canada's Parliament has seen an important change in the way public policy is debated and then enacted. This is due to an increase in the number and complexity of private Members' bills (PMBs) that have received Royal Assent. In the two Parliaments of Brian Mulroney's tenure as Prime Minister (1984-1993), 32 PMBs received Royal Assent, with 18 of these changing the name of an electoral district. (1) By comparison, in the three Parliaments of Stephen Harper's tenure as Prime Minister (2006-2015), 63 PMBs received Royal Assent, none of which dealt with riding name changes. Not only have the raw numbers of PMBs increased, but they now deal more frequently with amendments to such complex pieces of legislation as the Criminal Code. (2) From 1910 to 2005, 13 PMBs were adopted that dealt with criminal justice policy. From 2007 to 2015, this number increased by 20. (3) The number that took almost a century to reach was exceeded in less than a decade. Given the rise in the number and importance of PMBs, this article poses the question as to whether the rules of Parliament concerning PMBs are fit for the task.
The Treatment of Private Members' Business
The parliamentary rules that govern the treatment of PMBs have evolved throughout Canada's history. In the early years of Confederation, a large proportion of the time of the House of Commons was devoted to private bills or to private Members. Governments, however, found that the amount of House time given over to the conduct of their own legislative programs was not sufficient, and over the years, changes were made to the Standing Orders to give more House time to the government for its own business. (4) Private Members' Business (5) was then given greater prominence due to the recommendations of the Special Committee on the Reform of the House of Commons (the "McGrath Committee"), established in December 1984.
In its final report to the House in June 1985, the McGrath Committee summarized the problem with Private Members' Business in the following terms:
The House does not attach any great importance to private members' business as it is now organized. This is evident from the fact that members are seldom greatly concerned to claim the priorities they have drawn in the ballot governing the use of private members' time, and this is largely because private members' bills and motions rarely come to a vote. (6)
The Committee made the case for giving greater prominence to individual Members of Parliament as legislators by saying: "Private members must once again become instruments through which citizens can contribute to shaping the laws under which they live." (7) Enhancing the role of the private Member was seen as being a key part of restoring confidence in the House of Commons as the central democratic institution in Canada. The recommendations of the McGrath Committee supported the amendments to the Standing Orders that now form the basis for the modern rules relating to Private Members' Business, including the establishment of the order of precedence and the manner in which items are debated. (8)
The report of the McGrath Committee acknowledged the importance of PMBs, and rightly so. A PMB affords a Member of Parliament the opportunity to strike out on his or her own and to focus the attention of Parliament on an issue of particular importance to the MP personally or to his or her riding. It also provides a vehicle to distinguish an MP as an individual, as opposed to being just another member of what may be a large caucus. Furthermore, a PMB may serve as a means of encouraging the government of the day to adopt the issue in question as its own. Thus, an effective PMB system can contribute to legitimating Parliament in the eyes of an electorate which casts votes for a specific individual, not an abstract idea of a legislature.
We need here to distinguish between different types of PMBs. (9) Some serve to call attention to an issue by proclaiming a special day in commemoration. (10) The parliamentary rules governing PMBs seem to be entirely adequate to deal with this type of legislation. There are other PMBs, however, that have much greater legal implications, such as those that amend the Criminal Code. If a PMB is creating a new criminal offence, for example, then, in addition to any general societal impact, there will be widespread effects on the police, Crown and defence attorneys, judges, and the correctional and parole systems. All of these actors in the criminal justice system will require training concerning the new offence. The recent increase in the volume of PMBs and their use to make important changes in the criminal justice area calls into question whether the practices of the House of Commons and the Senate governing them need further amendment to ensure that they are given the parliamentary scrutiny they warrant.
Control of the Legislative Process
One of the most important tasks imposed upon Parliament by the Constitution Act, 1867 is that of making the criminal law. (11) This task is primarily carried out through the Criminal Code, but dozens of other statutes, such as the Controlled Drugs and Substances Act, (12) define criminal activity and impose fines and/ or imprisonment for its commission. Depriving Canadians of their liberty or property should be treated with the highest degree of seriousness and the federal government can ensure that its own criminal law bills are debated in the order it chooses. As a former law clerk and parliamentary counsel has written: "Policy decision-making is primarily the preserve of the Government which closely guides the schedule of the House of Commons to ensure the passage of its programmes." (13) This, however, is not the case with PMBs, which are called according to their place in the Order of Precedence, which, in turn, is based on a Member of Parliament's position on the List for the Consideration of Private Members' Business.
Individual MPs cannot change their place on the List for Consideration acting alone, as it is determined by a random draw at the beginning of the first session of a Parliament; (14) unanimous consent of the House of Commons would be required. Furthermore, exchanges of position between Members in the List for the Consideration of Private Members' Business are not permitted. (15) Nor do MPs have much control over the amount of time Parliament allots to the consideration of their bill. Standing Order 93 states that PMBs at the second reading stage (debate on the principle of the bill) shall receive no more than two hours of consideration, with at least ten sitting days elapsing between the first and second hour of debate. Standing Order 97.1 then states that a committee to which a PMB is referred has 60 sitting days to report it back, with one 30-day extension possible. This deadline can become problematic as committees routinely make any government bill referred to them a priority over any PMB. When a committee does report a PMB back to the House of Commons or is deemed to have reported a bill back, the order for consideration of the bill at report stage is placed at the bottom of the Order of Precedence. Then only two hours, one on each of two separate sitting days, are allotted for combined report stage and third reading consideration. (16) The one hour per sitting day set aside for Private Members' Business may also be cancelled, delayed, or interrupted for such things as consideration of urgent matters, a statement by a minister, or a recorded division (vote). (17) If a serious issue of criminal law needs to be addressed in a timely fashion, a PMB would not be the means to do so.
Furthermore, government bills on a particular subject matter are given precedence over PMBs dealing with the same subject matter in that a PMB may be designated "non-votable" (i.e., it should not proceed) if it concerns a question that is currently on the Order Paper or Notice Paper as an item of government business. (18)
Rules Governing Private Members' Bills vs. Government Bills
A PMB is also distinguished from government legislation by its inability to initiate taxation. Legislation seeking to increase taxes must be preceded by a ways and means motion. (19) Only a minister can bring a ways and means motion. (20) Therefore, private Members cannot introduce bills that impose taxes. Private Members' bills that reduce taxes, reduce the incidence of a tax, or impose or increase an exemption from taxation are, however, admissible.
Private Members' bills (as well as Senate bills) are also restricted in their ability to call for spending from the public purse. Section 54 of the Constitution Act, 1867 has been summarized by Eugene Forsey in the following terms: "It [the cabinet] has the sole power to prepare and introduce bills providing for the expenditure of public money." (21) This is known as the Royal Recommendation as the purpose behind the appropriation of public funds is recommended to the House of Commons by Message of the Governor General. Two types of bills confer the authority to spend and require a Royal Recommendation:
* appropriation acts, or supply bills, that authorize charges against the Consolidated Revenue Fund up to the amounts approved in the Estimates; and
* bills that authorize new charges for purposes not anticipated in the Estimates. These charges must be "new and distinct" and not covered elsewhere by some more general authorization. (22)
The Speaker determines whether a Royal Recommendation is required by considering whether the bill in question directly appropriates money, authorizes a novel expenditure not already authorized in law, broadens the purpose of an expenditure already authorized, or extends benefits. A bill which simply restructures the functions of a department, or imposes minor administrative expenses might not require a Royal Recommendation. (23) The rationale behind the requirement for a Royal Recommendation is found in the definition of a "responsible" government, whereby such a government is obliged to demonstrate to the representatives of the electorate how public funds are allocated in the carrying out of its legislative agenda.
The question then arises as to whether PMBs follow the same responsible government rules as those applied to government bills. If there is no Royal Recommendation being considered, a PMB proceeds on the premise that there will be no "new and distinct" charge on the public purse. In other words, either there will be little financial cost to the bill (such as those naming a particular day in honour of someone) or any cost is already covered by some general authorization. (24) As a result, the question "How much will this bill cost to implement?" is rarely posed publicly. (25) Yet this very question was asked in relation to Bill C-483, An Act to amend the Corrections and Conditional Release Act (escorted temporary absence). (26) The goal of this PMB was to transfer authority for certain escorted temporary absences of federal prison inmates from the head of the prison to the Parole Board of Canada. During hearings on this bill before the Standing Senate Committee on Legal and Constitutional Affairs, the head of the Parole Board was asked how much it would cost to implement this bill. He replied that it would cost approximately $750,000 to $800,000 per year. (27)
Few bills that seek to amend the Criminal Code or to change prison or parole rules in a substantive manner could do so without funding. In the case of Bill C-483, increasing the duties of the Parole Board of Canada would obviously increase its costs. It is, of course, a policy decision of the Government of Canada as to how, if at all, these costs will be met. It can make any PMB more or less effective by its funding decision. But the fact remains that, if the PMB in issue is to be more than symbolic in nature, there will be a call upon the public treasury, perhaps at the expense of other measures the government may have taken. Quantifying the amount of this call may be difficult, but it is an exercise governments undertake constantly.
PMBs and government bills also differ in the amount of resources allocated to their creation. When a government bill is contemplated, "The minister is encouraged, but not required, to allow departmental officials to proceed with policy consultations. These consultations allow stakeholders, other departments, provincial governments and others to provide input into the legislation before it is drafted." (28) Individual Members of Parliament do not have the resources to do this. The impetus for a PMB may be an incident that was of great importance in an MP's riding. The PMB, though, can take the form of an amendment to the Criminal Code that will apply to all Canadians in all circumstances. Is a single incident sufficient justification to change permanently the criminal law? Perhaps it is, but it is generally beyond the capacities of a single MP to reach this conclusion with the evidence necessary to support it. The Government of Canada can gather evidence to support a bill simply by consulting within its own sprawling ranks. The sponsor of a PMB, however, cannot be expected to know the national or even international scope of the problem his or her bill addresses. Nor, therefore, can he or she be expected to know how much the implementation of his or her bill will cost.
The intertwining of consultations and costs is an especially acute issue in the area of criminal law. The Constitution Act, 1867 does an unusual thing in that it grants to Parliament the authority to make the criminal law (in section 91(27)) but then gives the power to enforce that same law to the provinces (in section 92(14)). This has a number of implications. One is that the introduction of any legislation making amendments to the Criminal Code is likely to be preceded by a period of consultation with the provinces, which will be called upon to enforce the new provisions. It also means that there is often a delay before a government bill is proclaimed in force. This delay can provide the time required for the federal government that adopted the legislation to explain its implications to provincial governments and for the provinces to prepare administratively. Thirdly, the financial burden for a change in the criminal law can fall mainly upon a level of government that perhaps did not even support the policy change in question. This may entail financial arrangements between the federal and provincial governments.
Pre-introduction consultations and financial arrangements are unlikely to be part of the PMB process. If a PMB is silent on when it comes into force, then it comes into force whenever Royal Assent is granted; the government will have to step in and amend the coming into force provisions if it needs some time to get ready to implement it. (29)
One of the advantages for parliamentary committees in dealing with government legislation is that officials from the relevant ministry can come to explain the background to a bill, including the need for it. They can place the bill in the context of other government initiatives or simply afford a wider perspective on a narrow piece of legislation. In the case of a criminal law bill, officials from the federal Department of Justice are often called upon to explain the legal position of the Government of Canada in relation to it. This can include an indication of how the bill being studied fits within the larger framework of the criminal justice system. (30)
A good example of such contextualizing is in the area of sentencing. Section 718.1 of the Criminal Code states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The only way to know if a proposed sentence is proportionate is to compare it to other offences and their sentences. This is valuable information that is routinely provided to a committee by Justice Department officials for a government bill but may not necessarily be done in the case of a PMB. If a PMB proposes an enhanced or a mandatory sentence, how is a parliamentary committee to know that it is what is called for? It may be that the sentence is entirely appropriate, but the onus rests with a parliamentary committee to seek out expert legal advice on PMBs so that this result is not reached simply by happenstance.
Another important role played by the Department of Justice vis-a-vis government bills relates to the obligation imposed on the Minister of Justice by section 4.1 of the Department of Justice Act. (31) This section states that the minister is to examine every bill introduced in the House of Commons by a minister of the Crown and to report to the House any inconsistency with the provisions of the Canadian Charter of Rights and Freedoms (Charter). (32) A PMB is not introduced by a minister of the Crown and so there is no need to report any inconsistencies related to the Charter. (33) The responsibility of Department of Justice lawyers is to answer technical questions at the parliamentary committee stage; they are not to comment on constitutional questions concerning PMBs as they are only to provide constitutional advice on government bills. (34) The lack of constitutional advice in the case of a PMB was the subject of comment in the case of Bill C-309, An Act to amend the Criminal Code (concealment of identity). This bill raised issues concerning the limits on freedom of expression but, as it was a PMB, the Minister of Justice was not called in to report on its possible inconsistencies with the Charter. At third reading, Senator Joyal commented: "We cannot be sure that the bill before us is constitutional. We cannot assume that the Department of Justice vetted it in accordance with the minister's statutory obligation." (35) While witnesses may testify that a PMB is inconsistent with the Charter, its sponsor may decide to proceed with it anyway, judging that the political considerations of the bill outweigh the legal ones.
One means of addressing any constitutional or other shortcomings in a PMB is to have the Senate exercise, in Sir John A. Macdonald's words, "sober second thought." This can take the form of the Senate noticing any technical oversights or errors in bills that were initiated in the House of Commons and then proposing amendments to fix these flaws. When the Senate amends either a government bill or a PMB, a message is sent to the House of Commons to this effect. The House must then decide whether it accepts or rejects the amendments proposed by the Senate. Communication between the two Houses continues until they ultimately agree on a text. (36)
The Standing Orders do not specify any time limit for the consideration of a motion respecting Senate amendments. Such a motion could, in theory, be debated ad infinitum. In this way, a PMB (as well as a government bill) amended by the Senate could be delayed until it dies on the Order Paper at the next dissolution of Parliament. Such a scenario was alluded to during consideration of Bill C-525 (37) by the Standing Senate Committee on Legal and Constitutional Affairs. A drafting error was noticed during the committee's deliberations but the bill was not amended. (38) One Senator described the amending procedure for PMBs as being "fraught with danger" and said that sending an amended bill back to the House of Commons would "kill the bill." (39) Motions for time allocation (Standing Order 78) and for closure (Standing Order 57) may be moved to limit or close debate, including on Senate amendments. Crucially, however, these time-limiting motions may only be brought by a minister of the Crown; such motions cannot be moved by the sponsor of a PMB since such a sponsor cannot be a minister.
The PMB may be taking on more weight than its institutional structure can bear. It is not at all clear that the time and resources currently devoted to PMBs contemplated them being used to make substantial changes to an important area of law such as criminal justice. Fortunately, Canadian history has amply demonstrated how flexibly the country's institutions can respond to changing times. As Eugene Forsey has pointed out, the Constitution has been added to by legislation (e.g., the Parliament of Canada Act), by custom (the powers of the Prime Minister, responsible government, political parties), by court judgments, and by agreements between the national and provincial governments. (40) The House has adopted Standing Orders to govern its own procedure and these are under constant review.
There are many possible responses to the change in the use made of the private Members' bill, should there be the will to do so. Such changes should start with the understanding that bills changing the criminal justice system, to take one of the more serious examples, require a dedication of resources and attention commensurate with their importance. Measures to implement a greater focus on PMBs could include:
* Making legal experts available to individual Members of Parliament to perform the same function for PMBs as Department of Justice lawyers do for government bills. This could include researching such things as the need for the bill and its constitutionality as well as drafting it;
* Providing individual MPs with the personnel and expertise required to fully research their bill and, therefore, be better prepared to make arguments in its favour. There are resources available to Canadian MPs, such as the Library of Parliament, caucus researchers, and the Office of the Law Clerk and Parliamentary Counsel. But the number of staff assigned specifically to an individual MP and his or her PMB is small, especially in comparison to those assigned to their American colleagues. Each member of the House of Representatives may hire up to 18 permanent employees, a level of support far beyond that which Canadian MPs can call upon, even taking into account the fact that members of Congress represent more constituents. (41) If we expect Canadian MPs to propose legislation affecting public policy then we need to invest in them at something approaching the American level;
* Considering amendments to the Standing Orders to afford more time in Parliament to PMBs. This could mean extending the time in which Private Members' Business has precedence beyond its current one hour per sitting day or reconsidering the number of ways in which private Members' Business can be suspended.
Whatever method it chooses to respond to the increased significance of PMBs, Parliament would be doing itself and, thereby, the country as a whole a good service by affording private Members' bills the full and frank discussion that these important pieces of legislation deserve.
Robin MacKay is legal counsel for the Military Police Complaints Commission.
(1) Parliament of Canada, Parlinfo, Private Members' Public Bills Passed by Parliament. This list does not include divorce bills.
(2) Criminal Code, R.S.C. 1985, c. C-46.
(3) James B. Kelly and Kate Puddister, "Privatizing the Criminal Code? Private Members' Bills and Criminal Justice policy amendments under the Harper Conservatives," Canadian Political Science Association, 88th Annual Conference, University of Calgary, May 31 -June 2, 2016, p. 5.
(4) Audrey O'Brien and Marc Bosc, eds., House of Commons Procedure and Practice, 2nd ed., (Cowansville: Yvon Blais, 2009), Chapter 21. Private Members' Business, Historical Perspective.
(5) 'Private members' are generally defined as Members of the House of Commons who are not part of the Ministry. For the purposes of Private Members' Business, the Standing Orders also specifically exclude the Speaker, the Deputy Speaker and Parliamentary Secretaries.
(6) See the Special Committee on Reform of the House of Commons (the "McGrath Committee"), Third Report, p. 40. The Report was presented to the House of Commons on June 18, 1985.
(7) Ibid., p. 2.
(8) Permanent Standing Order changes were adopted on May 11, 2005 when the House of Commons concurred in the Thirty-Seventh Report of the Standing Committee on Procedure and House Affairs.
(9) This discussion only deals with public bills which concern matters of public policy under federal jurisdiction. Private bills concern matters of a private or special interest to specific corporations and individuals.
(10) One example of such a bill was Bill C-227, An Act respecting a national day of remembrance of the Battle of Vimy Ridge, introduced by Brent St. Denis (Algoma-Manitoulin), 37th Parliament, 1st Session. This bill came into force on April 3, 2003.
(11) Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 91(27) gives Parliament exclusive jurisdiction over "The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters."
(12) Controlled Drugs and Substances Act, S.C. 1996, c. 19.
(13) Rob Walsh, "By the Numbers: A Statistical Survey of Private Member's Bills," Canadian Parliamentary Review, Vol. 25, No. 1, Spring 2002.
(14) Standing Orders of the House of Commons, consolidated as of September 18, 2017, Order 87.
(15) House of Commons, Private Members' Business: A Practical Guide, Step Three: Establishing the List for the Consideration of Private Members' Business and the Order of Precedence [Standing Order 87].
(16) See Standing Order 98(2). The time provided for the consideration of a PMB at report stage and third reading may be extended by up to five hours on the second day of debate. If a bill is not disposed of within the first 30 minutes of debate on the first day of consideration, during any time remaining on that day, any Member may propose a motion to extend the debate on the second day for a period not to exceed five consecutive hours. This non-debatable, non-amendable motion is deemed withdrawn if fewer than 20 Members rise to support it as per Standing Order 98(3)(a).
(17) See Note 15, Step Five: Cancellations, Delays and Interruptions [Standing Orders 30(7), 53, 91 and 99].
(18) The list of criteria for making items of Private Members' Business non-votable is as follows:
Bills and motions must not concern questions that are outside federal jurisdiction. Bills and motions must not clearly violate the Constitution Acts, 1867 to 1982, including the Canadian Charter of Rights and Freedoms. Bills and motions must not concern questions that are substantially the same as ones already voted on by the House of Commons in the current session of Parliament, or as ones preceding them in the order of precedence. Bills and motions must not concern questions that are currently on the Order Paper or Notice Paper as items of government business. These criteria are excerpted from the 49th Report of the Standing Committee on Procedure and House Affairs, concurred in by the House on May 9, 2007.
(19) O'Brien and Bosc, Chapter 18. Financial Procedures, The Business of Ways and Means.
(20) See Standing Order 83(1).
(21) Eugene A. Forsey, How Canadians Govern Themselves, 9th ed., Minister of Public Works and Government Services Canada, Ottawa, 2016, p. 6. See also Rules of the Senate, Rule 10-7, and Standing Orders of the House of Commons, Standing Order 79(1).
(22) House of Commons, Compendium of Procedure, October 2015, Financial Procedures, Royal Recommendation for a Bill.
(23) Senate, Journals, 2nd Session, 40th Parliament, February 24, 2009, pp. 125-126 (Speaker's Ruling). Cited in Senate of Canada, Senate Procedure in Practice, June 2015, p. 154.
(24) Bill C-377, An Act to amend the Income Tax Act (requirements for labour organizations), S.C. 2015, c. 41, imposed new filing requirements upon labour organizations in their reports to the Canada Revenue Agency. The argument was made that the increased cost to the CRA in administering this new statutory requirement meant that the bill required a Royal Recommendation. The Speaker rejected this argument in the following terms: "In carefully reviewing this matter, it seems to the Chair that the provisions of the bill, namely the requirements for the agency to administer new filing requirements for labour organizations and making information available to the public, may result in an increased workload or operating costs but do not require spending for a new function per se. In other words, the agency, as part of its ongoing mandate, already administers filing requirements and makes information available to the public. The requirements contained in Bill C-377 can thus be said to fall within the existing spending authorization of the agency." See House of Commons Debates, December 6, 2012, 10:05.
(25) Every PMB that advances in the House is the subject of a Memorandum to Cabinet, which is to include an "analysis of costs" as well as "any assumptions on which the costing is based".
(26) An Act to amend the Corrections and Conditional Release Act (escorted temporary absence), S.C. 2014, c. 36.
(27) Standing Senate Committee on Legal and Constitutional Affairs, Evidence, December 4, 2014, Harvey Cenaiko, Chairperson, Parole Board of Canada.
(28) Andre Barnes, The Legislative Process: From Government Policy to Proclamation, Library of Parliament, Ottawa, Publication No. 2008-64-E, revised September 14, 2009, p.1.
(29) Section 5(2) of the Interpretation Act, R.S.C. 1985, c. 1-21 states: "If no date of commencement is provided for in an Act, the date of commencement of that Act is the date of assent to the Act."
(30) The introduction of amendments to the Criminal Code can also provide the occasion to update the language of the Code and strive for greater uniformity of expression.
(31) Department of Justice Act, R.S.C. 1985, c. J-2.
(32) There are, therefore, two different constitutional standards for government versus private Members' bills. A government bill must not be 'inconsistent' with the Charter. A PMB, however, will only be deemed non-votable if it "clearly violate[s] ... the Charter" (see note 18).
(33) It is unclear whether the Office of the Law Clerk and Parliamentary Counsel, which assists in the drafting of PMBs, vets PMBs for Charter-compliance. See Kelly and Puddister, note 3, p. 14.
(34) Kelly and Puddister, p. 3.
(35) Debates of the Senate, 23 May 2013, Senator Joyal.
(36) O'Brien and Bosc, Chapter 16. The Legislative Process, Stages in the Legislative Process.
(37) An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation--bargaining agent), S.C. 2014, c. 40.
(38) While Bill C-525 was not amended by the Standing Senate Committee on Legal and Constitutional Affairs, in its Twenty-First Report, presented in the Senate on December 12, 2014, the Committee appended Observations, noting that it was aware of a "minor drafting error" that should be corrected in future legislation prior to Bill C-525 coming into force.
(39) Standing Senate Committee on Legal and Constitutional Affairs, Evidence, December 12, 2014, Senator Tannas.
(40) Forsey, p. 10.
(41) Ida A. Brudnick, Congressional Salaries and Allowances: In Brief, Congressional Research Service, July 14, 2016.
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|Publication:||Canadian Parliamentary Review|
|Date:||Sep 22, 2018|
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